June 9, 2020 - Reading Time: 3 minutes - By The Vellum Team

Uhuru’s moment of political discernment morphing into a courtroom showdown

President Uhuru Kenyatta has this week introduced new vocabulary to constitutional reform: discernment.

On June 1, as he read his Madaraka Day speech, the President took a historical journey through some of Kenya’s significant governance and constitutional moments to create the doorway for his moment of discernment.

“In 2010, we formulated and adopted a new constitution, altogether replacing the independence constitution,” he said and delivered his crunch. “Ten years later, I am already discerning a constitutional moment.”

“Not a moment to replace the 2010 Constitution but one to improve on it.  But fundamentally, the constitutional moment I discern is one that will bring an end to the senseless cycles of violence we have experienced in every election since 1992.  And one that will deepen our democratic credentials and lead to a much more inclusive society, which, I believe, was the intention of the framers of the 2010 constitution,” he said.

The pronouncement was preceded by weeks of intense political activity that culminated in the removal of Senate Deputy Speaker Kithure Kindiki and Majority Leader Kipchumba Murkomen. Both men are Deputy President William Ruto’s allies – who have been felled from prime political perches with a singular consistency in the last few days.

Where does this stop?

There’s no telling where the bloodletting will stop. But the President indicated in an NTV interview that he was keen on having men and women in office who would support his agenda, read toe his line.

That the President and his deputy have been on a forked political journey since they were re-elected has not been in doubt. The President openly criticized his deputy soon after elections accusing him of engaging in political maneuvers at the expense of governance.

Mr. Ruto did not relent. The media has not lost sight of it as the DP has taken on less glamorous positioning in public affairs – compared to Jubilee’s first term – and concluded that the political alliance was dying off.

But had it?

On Madaraka Day, when the President proclaimed his discernment, the DP appeared to wear a suit, shirt, and tie matching that of his boss, as the famously christened “dynamic duo” had in their first months in office when attending a news briefing.

New twists and turns

A new twist came on Thursday when the President issued an Executive Order restructuring the government. Some observers have read it as further clipping of the DP’s wings, while others say there’s nothing to read between the lines.

But Chief Justice David Maraga fired a potshot at the order. He discerned a moment he didn’t like and wished to correct.

“The order cannot “restructure” or “assign functions” to other co-equal and co-substantial arms of government and independent commissions,” said the CJ. “It is therefore obvious that the Order only applies to and is, indeed, only capable of applying to the executive arm of government.”

More shots fired

Attorney General Paul Kihara immediately came to the President’s defense: “Nothing in the Executive Order is intended to undermine any independent arms of government or institutions or to cause any confusion to the public. The Executive Order seeks to provide clarity to ministries and government departments on their responsibilities with respect to the necessary and inevitable inter-agency linkages and liaisons.”

Next, the Law Society of Kenya discerned a moment of stepping in.

LSK President Nelson Havi said the society would file a petition in court challenging the Executive Order unless it is withdrawn by June 11.

“The lines between commissions and the Executive continues to be blurred,” Mr. Havi said, accusing the Executive of seeking to control the Judiciary. “It is unconstitutional for the President to purport to organize the government and set out the Judiciary, Commissions and Independent offices as institutions under or functions of ministries government departments and other constitutional bodies. He has no such powers.”

The contest could soon morph into one of the most prolific legal showdowns in history. And the President’s discernment of the constitutional moment may be sucked into the legal confrontation.

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